Moore v. Scott, et al

Filing 16

MEMORANDUM AND ORDER, denying 14 MOTION in Opposition to Severence of Claims filed by Anthony T. Moore, Jr., 3 MOTION for Recruitment of Counsel filed by Anthony T. Moore, Jr., 12 MOTION to Take Judicial Notice filed by Anthony T. Moore, Jr., 11 MOTION for Recruitment of Counsel filed by Anthony T. Moore, Jr. Plaintiffs Complaint (Doc. 10) is hereby DISMISSED without prejudice for failure to comply with Federal Rule of Civil Procedure 8. IT IS FURTHER ORDERED that, should he wis h to proceed with this case, Plaintiff shall file a Second Amended Complaint, stating any facts which may exist to support his chosen claims, within 28 days of the entry of this order (on or before April 11, 2018). (Amended Pleadings due by 4/11/2018.) Signed by Judge J. Phil Gilbert on 3/14/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY T. MOORE, JR.,
#446508,
Plaintiff,
vs.
MATTHEW SCOTT,
STEVEN STRUBBERG,
SHANE COLLINS,
WILLIAM KENNY,
PHILLIP MCLAURIN,
RICHARD WATSON,
M. LANZANTE,
ZACH KURTZ,
BRIAN SABO,
ST. CLAIR COUNTY JAIL,
THOMAS MESEY,
OFFICER LEVI BRIDGES,
TAMMY GRIMES,
DAVID NICHOLS,
MICHAEL BUJNAK,
SARGEANT MCCALL,
CHARLES GERMAINE,
THOMAS TRICE,
KARL L. PUNNIER,
NANCY SUTHERLIN,
NURSE BARBARA RODRIGUEZ,
NANCY KEEN,
DEBORAH HALE,
DR. LARSON,
WEXFORD HEALTH SERVICES, INC.,
BRENDAN F. KELLY,
DEBRA PHILLIPS,
JUDY DAHLIN,
OFFICER ANTHONY LEFLORE,
TERRY OWENS,
JOHN MILLER,
ADRIAN GILMORE,
SCOTT STROUD,
C/O HARRIS,
C/O GRAFE,
AUSTIN EVERETT,

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Case No. 17−cv–1153−JPG

MIKE RIPPERDA,
PATRICK FULTON,
C/O WALTERS,
MARY ROBINSON DAVIS,
B. FONTAG,
D. HUMPHREY,
UNKNOWN PARTY, and
ARAMARK FOOD SERVICES, INC.,
Defendants.

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MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Anthony T. Moore, Jr., a detainee in St. Clair County Jail (“Jail”), brings this
action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. In his
Amended Complaint,1 Plaintiff claims the defendants have violated many of his constitutional
rights and rights under Illinois state law. (Doc. 10). This case is now before the Court for a
preliminary review of the Amended Complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”

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Plaintiff filed an Amended Complaint (Doc. 10) before the Court was able to conduct a threshold review of his
original Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A. Parties may amend their pleadings early in a case once
as a matter of course. See FED. R. CIV. P. 15(a)(1). Because an amended complaint supersedes and replaces the
original complaint, rendering the original complaint void, the Court will conduct a threshold review of the Amended
Complaint and will not review the original Complaint. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d
632, 638 n.1 (7th Cir. 2004).

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Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Amended Complaint and any supporting exhibits, the Court
finds it appropriate to dismiss Plaintiff’s claims without prejudice pursuant to Federal Rule of
Civil Procedure 8
Background
The Amended Complaint sets forth approximately 68 claims against 44 defendants, based
on a plethora of allegations spanning from 2012 to the present day, with some interruption for
when Plaintiff was not incarcerated in the Jail. The claims involve, but are not limited to, the
conditions of confinement at the Jail, retaliation, deliberate indifference to health and safety,
access to the courts, due process, conspiracy, wiretapping, the Takings Clause, anti-trust laws,
unjust enrichment, tortious interference, battery and assault, excessive force, and equal
protection. (Doc. 10). These claims are based on various amendments to the Constitution,
federal statutes, and Illinois laws. Id. Plaintiff seeks monetary damages and injunctive relief.
(Doc. 10, p. 49).
Discussion
Pursuant to Federal Rule of Civil Procedure 8, in order to state a claim, a pleading must

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provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(1). “Rule 8(a) requires parties to make their pleadings straightforward, so
that judges and adverse parties need not try to fish a gold coin from a bucket of mud.” United
States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003). Although a
district court is “not authorized to dismiss a complaint merely because it contains repetitious and
irrelevant matter, . . . dismissal of a complaint on the ground that it is unintelligible is
unexceptional. Length may make a complaint unintelligible, by scattering and concealing in a
morass of irrelevancies the few allegations that matter.” Id. (internal citations and quotation
marks omitted).
Under Rule 8, plaintiffs are also required to associate specific defendants with specific
claims, so that defendants are put on notice of the claims brought against them and so they can
properly answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
FED. R. CIV. P. 8(a)(2). Merely invoking the name of a potential defendant is not sufficient to
state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).
Moreover, vague references to a group or list of defendants, without specific allegations tying the
individual defendants to the alleged unconstitutional conduct, do not raise a genuine issue of
material fact with respect to those defendants. See Alejo v. Heller, 328 F.3d 930, 936 (7th Cir.
2003) (finding dismissal of named defendant proper where plaintiff failed to allege defendant's
personal involvement in the alleged wrongdoings); Starzenski v. City of Elkhart, 87 F.3d 872,
879 (7th Cir. 1996).
The Amended Complaint is problematic under Rule 8 for its length (50 cramped
handwritten pages), large number of defendants (44), and excessive number of intended claims
(approximately 68). (Doc. 10). The Amended Complaint also often groups defendants together

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instead of associating specific defendants with certain actions, and repeatedly states legal
conclusions as if they were facts.
Further, given the length of time covered by the allegations, the Court suspects that at
least some of Plaintiff’s claims are time barred under the relevant statute of limitations, though
Plaintiff has insisted that they are not in a separately file Notice Regarding Statute of Limitations
(Doc. 13). The Court also suspects that, despite Plaintiff’s insistence to the contrary in a
separately filed Motion in Opposition to Severance (Doc. 14), many of Plaintiff’s claims are
improperly joined and are subject to severance pursuant to Federal Rules of Civil Procedure 18
and 20. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).2 Instead of severing
immediately, however, the Court will allow Plaintiff to amend his complaint so as to focus his
claims and come into compliance with Rule 8.
For these reasons, the Amended Complaint does not survive preliminary review and shall
be dismissed without prejudice. Plaintiff will be granted leave to file an amended complaint,
according to the instructions and deadlines set forth in the disposition.
Pending Motions
Plaintiff has filed two Motions for Recruitment of Counsel (Doc. 3, 11), which are hereby
DENIED. There is no constitutional or statutory right to appointment of counsel in federal civil
cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal District Courts have
discretion under 28 U.S.C. § 1915(e)(1) to request counsel to assist pro se litigants. Id. When
presented with a request to appoint counsel, the Court must consider: “(1) has the indigent

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The Seventh Circuit Court of Appeals has recently warned district courts not to allow inmates “to flout the rules
for joining claims and defendants, see FED. R. CIV. P. 18, 20, or to circumvent the Prison Litigation Reform Act’s
fee requirements by combining multiple lawsuits into a single complaint.” Owens v. Godinez, 860 F.3d 434, 436
(7th Cir. 2017). See also Wheeler v. Talbot, 695 F. App’x 151 (7th Cir. 2017) (district court should have severed
unrelated and improperly joined claims or dismissed one of them).

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plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing
so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it
himself [.]” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).
With regard to the first step of the inquiry, Plaintiff claims that he attempted to contact
the ACLU in Chicago, Illinois and the People’s Law Office in Chicago, but that neither has
responded to his letters. (Doc. 11, p. 1). Plaintiff also claims he asked his criminal defense
attorney to represent him in this case, but his defense attorney does not handle these types of
cases. Id. Plaintiff has not provided any detail regarding his attempts to retain the ACLU or the
People’s Law Office for this case, nor has he attached any copies of documents that would
support his assertion that he has made a reasonable effort to retain them. Plaintiff has therefore
not shown that he made a reasonable attempt to find counsel.
Were the Court convinced that Plaintiff satisfied the first step, the Court then considers
the second step of the inquiry, “the difficulty of the case is considered against the plaintiff’s
litigation capabilities, and those capabilities are examined in light of the challenges specific to
the case at hand.” Id. at 655. In this case, the Court cannot say what claims will actually be at
issue, as Plaintiff’s Amended Complaint is in violation of Rule 8 and the civil rules regarding
joinder of claims. He is being given leave to file an amended complaint herein so he may bring
focus to his intended claims.
From a legal standpoint, the litigation of any constitutional claim falls in the complex
range. Even so, Plaintiff’s complaint is legible and relatively organized. Plaintiff also claims
that someone assisted him in preparing his Amended Complaint. Based on this information, this
Court concludes that Plaintiff appears to be competent to litigate his case at this time. Future
developments in this case may alter the Court’s decision, but at this early stage in the litigation,

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Plaintiff’s motions for appointment of counsel are DENIED without prejudice. Plaintiff may
choose to file a motion for counsel at a later stage in the litigation.
Plaintiff has filed a Motion to Take Judicial Notice (Doc. 12), seeking to notify the Court
of a case Plaintiff believes should inform this Court’s decisions in this case. Plaintiff has not
sought any additional relief in this Motion, and this Court is aware of the case Plaintiff points to,
so the Motion (Doc. 12) is DENIED as moot.
Plaintiff has filed a Motion in Opposition to Severance of Claims (Doc. 14), which is
DENIED as moot. The Amended Complaint to which the Motion refers is being dismissed
herein, and the Court is not severing any claims from it. The Court notes that in this Motion,
Plaintiff attempts to explain how his many claims are related and therefore immune to severance.
He appears to want this Court to consider these assertions as a part of the Amended Complaint.
It did not do so, however, as it does not accept piecemeal amendments to a complaint.
Plaintiff has filed a second Motion for Leave to Proceed In Forma Pauperis (Doc. 15),
which is DENIED as moot, as he has already been granted leave to proceed in forma pauperis.
Disposition
Plaintiff’s Complaint (Doc. 10) is hereby DISMISSED without prejudice for failure to
comply with Federal Rule of Civil Procedure 8.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file a Second Amended Complaint, stating any facts which may exist to support his chosen
claims, within 28 days of the entry of this order (on or before April 11, 2018). Should Plaintiff
fail to file his Second Amended Complaint within the allotted time or consistent with the
instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to
comply with a court order and/or for failure to prosecute his claims. FED. R. APP. P. 41(b). See

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generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d
466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). Such dismissal shall count as one of Plaintiff’s three
allotted “strikes” within the meaning of 28 U.S.C. § 1915(g) because he has yet to state a claim
upon which relief may be granted.
Should Plaintiff decide to file a Second Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“Second Amended Complaint,” and he should use the case number for this action (i.e. 17-cv1153-JPG). The pleading shall present each claim in a separate count, and each count shall
specify, by name, each defendant alleged to be liable under the count, as well as the actions
alleged to have been taken by that defendant. Plaintiff should attempt to include the facts of his
case in chronological order, inserting each defendant’s name where necessary to identify the
actors. Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include only
related claims in his new complaint. Claims found to be unrelated to one another will be severed
into new cases, new case numbers will be assigned, and additional filing fees will be assessed.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the Amended Complaint.
Thus, the Second Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
Second Amended Complaint. The Second Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A. No service shall be ordered on any defendant until after the Court completes
its § 1915A review of the Second Amended Complaint.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was

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incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a Second Amended Complaint. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: March 14, 2018
s/J. Phil Gilbert
United States District Judge

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